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Perspective - Snapshot

CAP and BCAP consultation on restrictions on ads for “less healthy” foods

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

How is the ASA going to police new rules on advertising “less healthy” food and drinks (Less Healthy Products)?

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Perspective - Snapshot

Express and implied contractual duties of good faith – construing the clause in its context and approach to the implication of terms

Published on 17 Apr 2024.

Aston Martin MENA Ltd v Aston Martin Lagonda Ltd [2023] EWHC 3285 (Comm)

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Perspective - Snapshot

Construing exclusion and limitation of liability clauses – fraudulent performance of a contract

Published on 17 Apr 2024.

Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corp [2024] EWHC 35 (TCC)

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Perspective - Snapshot

Department for Science, Innovation and Technology consults on proposed data infrastructure statutory framework

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

What statutory obligations could the Department for Science, Innovation and Technology’s (DSIT) proposed statutory framework impose on UK data centre providers?

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Perspective - Snapshot

Privity of contract – non-signatory and not defined “Party” has rights as a “party” to the agreement

Published on 17 Apr 2024.

Canon Medical Systems Limited v The Imaging Centre Assets Limited & Ors [2023] EWHC 3007 (Comm)

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Perspective - Snapshot

CJEU rules on what constitutes “automated decision-making” under the GDPR

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

Does the production of a credit score constitute “automated decision-making” for the purposes of Article 22 of the EU General Data Protection Regulation (GDPR)? What wider impact will this have for AI technologies?

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Perspective - Snapshot

ICO fines HelloFresh £140,000 after 7-month spam marketing campaign

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

Where did HelloFresh go wrong with their email and text marketing campaign and what lessons can be learned from the ICO’s investigation and subsequent fine?

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Perspective - Snapshot

EDPB adopts opinion on “main establishment” of a controller in the EU

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

What is meant by “main establishment” under article 4(16)(a) of the GDPR for the purposes of determining the application of the one-stop-shop mechanism?

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Perspective - Snapshot

ICO publishes updates to its guidance on Transfer Risk Assessments

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

How will recent updates to the Information Commissioner’s Office’s (ICO) guidance on Transfer Risk Assessments (TRAs) affect how UK organisations conduct their TRAs?

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Perspective - Snapshot

ICO warns UK’s most visited websites to improve cookie choices

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

What steps is the ICO taking to ensure that website cookie banners are compliant with law?

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Perspective - Snapshot

New Development: National Cyber Security Centre warns AI is likely to heighten global ransomware threat

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

The National Cyber Security Centre (NCSC), part of GCQH, has published a report on the “near-term impact of AI on the cyber threat” over the next two years, which concludes that: (i) AI is already being used in cyber activity in a malicious way; and (ii) the volume of cyber attacks and the global ransomware threat are likely to be heightened over the next two years.

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Perspective - Snapshot

New Development: EU Data Act published in Official Journal

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

The EU Data Act (the Act) came into force on 11 January 2024. The Act sets out rules regarding the fair access to and use of data, aiming to enhance the data economy for individuals and businesses by overcoming barriers to data sharing and establishing frameworks around data access and use.

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Perspective - Snapshot

New ICO guidance on content moderation and data compliance

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

How can organisations using content moderation technologies and processes best comply with data protection laws?

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Perspective - Snapshot

Collective actions under consumer law: proposed amendments to the Digital Markets, Competition and Consumers Bill

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

Are class actions under consumer protection law likely following the UK’s new DMCC Bill, and if so, what will the impact on businesses be?

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Perspective - Snapshot

The DMCC Bill: New laws set to ban fake reviews and drip pricing from online shopping

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

What new laws is the UK Government planning to introduce to tackle fake reviews and unfair fees when it comes to online shopping?

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Perspective - Snapshot

ASA rules against airlines for misleading green claims in paid-for ads

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

Will it ever be possible for airlines to advertise themselves as being environmentally friendly?

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Perspective - Snapshot

Online Fraud Charter agreed by largest tech companies

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

What are the obligations for tech companies that have signed up to the UK’s Online Fraud Charter (the Charter)?

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Perspective - Snapshot

ICO launches consultation series on generative AI and data protection

Published on 17 Apr 2024. By Oliver Bray, Senior Partner

What is the Information Commissioner’s Office’s (ICO) intended approach to developing guidance on how data protection law should be applied to the development and use of generative AI?

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Perspective - Snapshot

Snapshots Spring 2024

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

A roundup of key legal developments for the modern commercial lawyer.

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Perspective - Snapshot

UK Government publishes response to AI White Paper consultation

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

What approach has the UK Government’s adopted in its response to the consultation on the AI regulation White Paper (the White Paper)?

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Perspective - Snapshot

Court of Appeal holds Samsung liable for trade mark infringement by third-party apps

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

Can online platforms be liable for trademark infringement by third-party apps?

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Perspective - Snapshot

What the AI is going on… December 2023 to March 2024

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

Google launched its newest GenAI, Gemini Nano. Designed specifically for mobile phones it presents new competition to market leaders OpenAI. Gemini Nano will allow AI apps that operate offline as opposed to only on servers and provide improved privacy for users.

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Perspective - Snapshot

UK Supreme Court rejects AI as “inventor” under the Patents Act

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

What is the scope and meaning of “inventor” in the UK’s patent framework, and will it accept an AI machine as being the sole inventor?

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Perspective - Snapshot

Applying limitation of liability clause to primary obligation to pay for goods

Published on 17 Apr 2024.

Costcutter Supermarkets Group Limited v Vaish [2024] EWHC 152 (KB)

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Perspective - Snapshot

The new EU Digital Operational Resilience Act (DORA)

Published on 17 Apr 2024. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

What can financial services entities and ICT providers expect from DORA and what do they need to do prepare for it?

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Perspective - Snapshot

ASA publishes final report on Intermediary and Platform Principles Pilot

Published on 13 Dec 2023. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

How have the main digital platforms responded to the ASA’s year long Intermediary and Platform Principles Pilot initiative (the IPP)?

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Perspective - Snapshot

Excluding statutory implied terms – inequality of bargaining power considerations

Published on 13 Dec 2023. By David Cran, Head of IP & Tech

In what circumstances is it reasonable to exclude the statutory implied term as to quality?

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Perspective - Snapshot

SPA breach of warranty claim – interpreting a no material adverse change warranty

Published on 13 Dec 2023. By David Cran, Head of IP & Tech

How will the courts assess an alleged breach of a warranty that there had been no material adverse change in the financial prospects of a company?

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Perspective - Snapshot

Exclusion clauses - loss of profits and wasted expenditure

Published on 13 Dec 2023. By David Cran, Head of IP & Tech

What factors does the court take into account when construing an exclusion clause that covered loss of profits and wasted expenditure, and how does the court approach arguments on whether UCTA applies where the parties are dealing on standard terms of business that have been subject to some negotiation?

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Perspective - Snapshot

Express and implied good faith obligations and relational contracts

Published on 13 Dec 2023. By David Cran, Head of IP & Tech

Did an express or implied general duty of good faith arise under a relational contract between parties who were also competitors?

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Perspective - Snapshot

Incorrect invoicing – claiming the difference between sums mistakenly invoiced and sums correctly due under agreement terms

Published on 13 Dec 2023. By David Cran, Head of IP & Tech

When a supplier invoices a lower sum than the figure due under the agreement, can the customer defend a claim in debt based on incorrect invoicing?

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Perspective - Snapshot

Interest clauses – displacing the courts’ wide discretionary powers to award interest on debt or damages

Published on 13 Dec 2023. By David Cran, Head of IP & Tech

What is the courts’ approach to awarding statutory interest when a contract provides for contractual interest.

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Perspective - Snapshot

Snapshots Winter 2023

Published on 12 Dec 2023. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech

A roundup of key legal developments for the modern commercial lawyer.

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Perspective - Snapshot

Clearview AI cleared of £7.5m ICO fine for processing data outside the UK

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

Just how did the processing of personal data by Clearview AI (Clearview) fall outside the scope of UK GDPR?

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Perspective - Snapshot

Ofcom issues draft guidance and launches consultation on the Online Safety Act 2023

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

What can platforms expect from Ofcom, as it steps into its new role regulating compliance with the Online Safety Act 2023 (the Act)?

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Perspective - Snapshot

Last chance saloon: EU consumers only have one opportunity to withdraw from auto-renewing subscription contracts

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

When do EU consumers have a right to withdraw from subscription contracts? And how will this differ to the UK’s approach under the new Digital Markets, Competition and Consumers Bill (DMCC)?

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Perspective - Snapshot

European consumer group files greenwashing complaint over water bottle recyclability

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

Will a consumer group complaint about recyclability and the use of green imagery on water bottle packaging be successful in proving a breach of EU regulations against greenwashing? And what will this mean for wider industry using recyclable or recycled packaging?

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Perspective - Snapshot

Platforms with Irish HQs win EU case to follow Irish law

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

Do platforms have additional regulatory obligations in EU states, even if they don’t have a registered office there?

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Perspective - Snapshot

New Development: European Parliament adopts draft report to address the addictiveness of digital platforms

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

Earlier this year, the European Parliament published a draft report (the Report) on the addictive design of online services and consumer protection.

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Perspective - Snapshot

ICO publishes its draft “Data Protection Fining Guidance” for public consultation

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

How will the Information Commissioner’s Office (ICO) calculate the amount of a fine under the UK GPDR and the Data Protection Act (DPA) 2018?

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Perspective - Snapshot

EU Advocate General’s opinion on data subjects’ rights to compensation for non-material damage under the GDPR

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

Does the theft of an individual’s sensitive personal data by a wrongdoer give rise to compensation for non-material damage under Article 82 EU General Data Protection Regulation (GDPR), if the wrongdoer has not used, or taken steps to use, the sensitive personal data for any purpose?

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Perspective - Snapshot

ICO publishes guidance to ensure lawful monitoring in the workplace

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

How can employers monitor their workers whilst maintaining their trust and complying with data protection regulation?

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Perspective - Snapshot

ICO issues preliminary enforcement notice against Snap for its “My AI” Chatbot

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

How can organisations who wish to join to the world of generative AI ensure that they adequately assess the risks from the perspective of the Information Commissioner’s Office (ICO)?

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Perspective - Snapshot

New Development: EDPB provides clarification on tracking techniques covered by the ePrivacy Directive

Published on 11 Dec 2023. By Oliver Bray, Senior Partner

On 14 November 2023, the European Data Protection Board (EDPB) adopted a set of new guidelines (the Guidelines) on the technical scope of Article 5(3) of the ePrivacy Directive (the ePD).

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Perspective - Snapshot

UK Government u-turns on phasing out “CE” product safety marking

Published on 25 Oct 2023. By Oliver Bray, Senior Partner

What product safety marks can be used on products in the UK?

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Perspective - Snapshot

The Retained EU Law (Revocation and Reform) Act 2023 – a happy new year?

Published on 25 Oct 2023. By Oliver Bray, Senior Partner

How will the Retained EU Law (Revocation and Reform) Act 2023 (the Act) impact UK businesses?

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Perspective - Snapshot

Government consults on improving price transparency and product information for consumers

Published on 25 Oct 2023. By Oliver Bray, Senior Partner

What does the UK Government’s consultation on Improving Price Transparency and Product Information for Consumers (the Consultation) signal about online choice architecture, and what businesses should be doing now to avoid the risk of fines next year?

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Perspective - Snapshot

Terminating software agreements when they fail to deliver software deliverables on time

Published on 25 Oct 2023. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech and Helen Armstrong, Partner

How did the court determine: (1) whether a software implementation timeline agreed by the parties was binding; (2) when implementation was considered complete; and (3) in what circumstances did failing to complete implementation by the contractual deadlines entitle the customer to terminate the contract?

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Perspective - Snapshot

Limitation of liability clauses in software development projects – financial caps

Published on 25 Oct 2023. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech and Helen Armstrong, Partner

Was the limitation of liability clause in the Master Services Agreement construed by the court to provide for a single aggregate cap to be applied to the customer's pleaded claims (limiting the claim to £11.5m from a pleaded claim of £31m), or separate caps for each claim?

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Perspective - Snapshot

Pre-contractual documents – when heads of terms are legally binding and enforceable

Published on 25 Oct 2023. By Oliver Bray, Senior Partner and David Cran, Head of IP & Tech and Helen Armstrong, Partner

Was a signed document marked “heads of terms” but not marked “subject to contract” a binding agreement for lease?

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